Mike Daly and Mark D. Taticchi quoted in Law360 article “TCPA ‘Merely A Pawn’ In High Court Deference Fight.”

On March 25, 2019, PDR Network and Carlton & Harris Chiropractic appeared in front of the Supreme Court to present oral arguments discussing the issue of whether the Hobbs Act requires federal courts to accept without question the Federal Communications Commission’s (FCC) numerous orders interpreting the TCPA.

Carlton & Harris Chiropractic has pressed the Supreme Court to uphold a Fourth Circuit ruling where the Hobbs Act required district courts to accept the FCC’s interpretation of an “unsolicited advertisement” without question. The PDR Network responded by arguing that the Hobbs Act only considers direct challenges to agency actions and has no restrictions on the district courts’ powers to consider statutory interpretation arguments.

Those watching the matter expected the Justices to question deference and due process issues that will impact TCPA lawsuits nationwide as well as any legal issue that includes statutory orders created by a federal agency. Mike and Mark discussed key issues to keep in mind as the oral arguments unfolded.

Mike and Mark remarked on what they labeled the most glaring problem with the Fourth Circuit’s ruling, where defendants are unable to challenge rulings in proceedings where they were not parties. They added that, “it assumes that the parties are not only able to predict every consequence of a ruling, but also willing to invest massive amounts of time and money challenging a ruling, even if – as was true in this case – there had at the time of the ruling been very little litigation under the relevant statute.” Several Justices echoed these points at oral argument, including Justices Alito and Gorsuch.  Justice Gorsuch was particularly pointed, positing a regulation imposing a monthly fine on people named “Bob” and inquiring whether a person with that name who was born after the regulation was enacted could nevertheless challenge it in court.

Mike and Mark also posited that the Justices would likely “look for an interpretation that avoids these constitutional concerns.” Mike and Mark also spoke to the newest Justices’ stance and noted that this case is an opportunity for them to “chip away at decades of deference decisions.”  The Court will issue a decision in the case by the end of June.

Read “TCPA ‘Merely A Pawn’ In High Court Deference Fight.”

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